IBM exec picked to head patent office

SAN JOSE, Calif.  Early reactions support President Barack Obama's choice of David Kappos, the assistant general counsel for intellectual property law at IBM Corp., as the new head of the U.S. patent office. Kappos would take the post at a time when a three-year drive for patent reform is currently being hotly debated and the patent office is swamped by a historic backlog of applications.

"The PTO is in crisis, and I think Dave Kappos understands that, and will work creatively to try to find ways out of the crisis," said Mark A. Lemley, a professor at the Stanford Law School whose name was also listed as one the Obama administration may have considered for the job. "I also think he is sensitive to the need for patent reform, which is a good thing," he added.

Kappos is responsible for IP policy at IBM, working with Big Blue's litigation and corporate development groups. He testified before Congress in March, speaking in favor of the draft Patent Reform Act of 2009 (S.515).

In his testimony, Kappos talked about the rising number and complexity of patent applications. Despite hiring as many as 1,000 new patent examiners a year, the office cannot keep up, making it difficult to maintain patent quality, he said.

Kappos' opinions, as articulated in the testimony, generally follow the line of the Coalition on Patent Fairness, a lobbying group backed by companies including Cisco Systems, Hewlett-Packard and Intel. However, even opposing groups such as the Innovation Alliance have issued positive statements about the Kappos nomination.

"He is a very experienced patent attorney, and we hope he will start the process of making the patent office work more efficiently," said Taraneh Maghame, head of government affairs at Tessera, a member of the alliance who testified before the Senate in the same hearings as Kappos.

"He was employed by IBM [then] and promoting views of the company he worked for, but as head of the patent office he will be in a position to strengthen and protect the rights of all patent holders, and we hope he will be fair-minded," she added.

Observers had discussed Kappos as a potential pick for months. In a poll conducted by the blog Patently-O, Kappos took fourth place with five percent behind Q. Todd Dickinson, the head of the patent office under Bill Clinton (at 36 percent); and Stanford's Lemley and "other" (tied at 8 percent).

The blog supported Kappos for the job. However, it and at least one other source suggested IBM has contributed to the problem of the patent backlog by filing many, sometimes questionable patent applications.

"I have met Kappos on several occasions and have always been impressed by him," wrote Joff Wild, an editor for Intellectual Asset Management magazine in a blog. "He strikes me as an innovative thinker about IP, who is open to new ideas and who is prepared to discuss issues with people who might hold views that do not coincide with his own," he added.

Kappos is "definitely someone who brings very current, hands on experience to the role," said Mike McLean, a vice president at Semiconductor Insights, a division of TechInsights, the publisher of EE Times. "I don't know him personally, but his bio is impressive and he's been very active with most of the leading IP industry associations," he said.

"It's nice to see someone with an engineering as well as legal background, and it will be interesting to see how he handles the transition from a corporate to government culture," McLean added.

Senator Patrick Leahy (D-Vt.), who has spearheaded work on patent reform also praised the nomination.

"The USPTO faces serious challenges in this difficult economic environment, and the office requires strong leadership, and David Kappos is such a leader," said Leahy in a prepared statement. "I look forward to working with him on issues confronting the USPTO, including reducing the backlog and pendency of patent applications and modernizing the patent system as Congress considers the Patent Reform Act," he added.

If approved, Kappos official title will be Undersecretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.

Of the reference to Joff Wild, Joff Wild in the IAM Blog could have been more specific about IBM's "airplane toilet queue" and "outsourcing method" applications. Even Jon Dudas was including the first queue patent in his talks, although he did not identify IBM by name. The patent reforming IP profs talk about the "method of swinging on a swing" patent (now gone and a gimmick in the first place by a patent attorney father) much more than about some of IBM's questionable applications, which are not gimmicks. IBM's posture on the queue and outsourcing matters, when they were exposed, was like that of a child caught with a hand in the cookie jar. IBM's strategy on patents is basically to obtain a lot of "little" (likely incremental) patents, and to threaten a potential infringer with a wall of patents, rather than with one, or a few, killers. In this, patents are not engines of innovation, but of gradualism. Patents as a defense of the past rather than pathway to the future. If, purely hypothetically, Kappos carried that vision to the USPTO, any changes as to "patent quality" would be more superficial than substantive.